Argument preview: Of secrecy and sandwiches

Posted Thu, October 27th, 2011 10:47 am by Timothy Coates

Grand juries are proverbially known for two things – utmost secrecy and a malleability that allows a savvy prosecutor to indict a ham sandwich. In Rehberg v. Paulk, the Supreme Court’s decision may well turn on which of these famed grand jury traits carries the day.

The issue before the court is whether a complaining witness who provides false testimony in a grand jury proceeding is entitled to absolute immunity from federal civil rights liability under 42 U.S.C. §1983. The case calls upon the Court to fill in one of the notorious gray areas in its immunity jurisprudence that has spawned a clear circuit split.

In Briscoe v. LaHue (1983), the Court held that witnesses testifying at trial are absolutely immune from civil rights liability stemming from their testimony. On the other hand, in Malley v. Briggs (1986) and Kalina v. Fletcher (1997), the Court held that a law enforcement officer and prosecutor, respectively, were not entitled to absolute immunity for acting as “complaining witnesses” by submitting affidavits in support of an arrest warrant. The question in Rehberg is whether testimony at a grand jury proceeding that results in an indictment is more like testimony of a complaining witness and hence not entitled to absolute immunity, or whether it is instead the equivalent of trial testimony and witnesses are absolutely immune from any liability.

Charles Rehberg contends that he was subjected to three false criminal indictments as a result of his whistle blowing activities at a Georgia hospital. All three indictments were the result of grand jury testimony by a district attorney investigator, James Paulk. Rehberg sued Paulk in federal court, asserting various claims, including a claim for malicious prosecution in violation of the Fourth Amendment under 42 U.S.C. §1983. Paulk moved to dismiss the complaint, contending that his testimony before the grand jury was shielded by absolute immunity under Briscoe, and that in any event he was at the very least entitled to qualified immunity in that he would not have known that his conduct was unconstitutional based upon clearly established law.

The district court denied the motion, rejecting qualified immunity out of hand because it would be reasonably clear to any police officer that perjury to procure a criminal indictment was unlawful. The district court also rejected Paulk’s claim of absolute immunity, finding that his testimony in the grand jury proceeding was akin to that of a complaining witness under Malley and Kalina and not trial testimony under Briscoe. In what may or may not turn out to be important later in this case, the district court also noted that dismissal of the entire complaint at the pleading stage was improper because the complaint also alleged non-testimonial conduct by Paulk that had caused Rehberg’s prosecution.

Paulk appealed. The Eleventh Circuit reversed the district court’s determination that Paulk was not entitled to absolute immunity for his grand jury testimony. Relying on prior circuit precedent, the court found that grand jury testimony was the equivalent of trial testimony under Briscoe and absolute immunity applied. The court explained that allowing civil suits for false grand jury testimony would result in broad discovery that would undermine the confidential nature of grand jury proceedings and eviscerate the traditional absolute immunity for testimony in judicial proceedings.

Petition for certiorari

Rehberg filed a petition for writ of certiorari presenting a single question: whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages. Rehberg pointed out the longstanding conflict among the appellate courts as to whether testimony in grand jury proceedings fell within the Malley/Kalina rule that complaining witnesses were not entitled to absolute immunity but only qualified immunity, or whether grand jury testimony was akin to trial testimony for purposes of absolute immunity under Briscoe. Seven circuits lined up in the Malley/Kalina camp, while three other circuits fall in Briscoe camp.

Rehberg contended that it was necessary for the court to resolve the conflict, because the issue of whether grand jury testimony can spawn a cause of action for malicious prosecution is a source of continuing and contentious litigation. At least fifty state and federal court decisions have addressed the “complaining witness” exception to testimonial immunity.

Rehberg also asserted that the circuits extending absolute immunity to grand jury testimony had misapplied the court’s precedents. The court had made it clear that absolute immunity would be extended only where there was a common law basis for doing so, and as the Court recognized in Kalina and Malley, at common law complaining witnesses were not immune from malicious prosecution claims.

Merits briefs

Rehberg leads his merits brief with his strongest point: the Supreme Court has repeatedly held that on its face, Section 1983 does not contemplate any immunities, and that to the extent any exist, it is only insofar as the same immunities existed at common law in 1871 when Section 1983 was enacted. Rehberg points out that in both Malley and Kalina the Court had concluded that under the common law in 1871 complaining witnesses could be sued for malicious prosecution.

Rehberg also argues that strong policy considerations support rejection of absolute immunity for grand jury testimony by complaining witnesses. First, distinguishing between prosecutions initiated by grand jury indictment and those initiated by a warrant or information produces absurd results. Under Malley and Kalina, a witness who testified via affidavit in support of an arrest warrant would not have absolute immunity. Yet, under Paulk’s view, that same witness presenting the same testimony in a grand jury proceeding would be entitled to absolute immunity. The arbitrary nature of this distinction is underscored by the fact that in many states a prosecutor has sole discretion as to whether a case proceeds by way of information/complaint or by indictment, thus leaving the level of immunity essentially in the hands of a prosecutor. Second, Rehberg argues that victims of malicious prosecution stemming from a grand jury indictment are no less entitled to proper recompense under Section 1983 than those who have been prosecuted as a result of the filing of an information or complaint. Third, several safeguards that the Court in Briscoe found to be present at trial — such as public scrutiny and the ability to cross examine witnesses and to present exculpatory evidence – do not exist in grand jury proceedings. . Finally, Rehberg notes that allowing minimal discovery for purposes of qualified immunity poses little danger to the grand jury process. A majority of circuits have rejected absolute immunity for complaining witnesses in grand jury proceedings and the sky has not fallen, nor have the Court’s decisions in Malley and Kalina opened the floodgates to litigation in cases stemming from prosecution triggered by complaints or informations.

In response, Paulk makes an interesting observation via extended footnote: the Court is determining whether absolute immunity applies to a civil claim that the Court has not recognized. In Albright v. Oliver (1994), the Court declined to create a Fourteenth Amendment substantive due process claim for malicious prosecution. Rather, the Court held that to the extent any constitutional claim for malicious prosecution existed, it lay within the confines of a more specific constitutional provision. The Albright majority declined to speculate whether the Fourth Amendment encompasses such a claim, but in a concurring opinion Justice Ginsburg strongly urged that it did. Having prevailed on absolute immunity in the Eleventh Circuit, Paulk had no reason to challenge the Eleventh Circuit’s determination that a malicious prosecution claim falls within the Fourth Amendment. But his footnote amply makes the point that the question is hardly a clear one for the Court, albeit it one for another day.

On the substantive side, Paulk acknowledges that the common law in 1871 recognized a claim for malicious prosecution against complaining witnesses. But he observes that while the Court has routinely stated that it was not free to create immunities other than those existing at common law in 1871, nonetheless it had repeatedly done so, recognizing that many, if not most elements of the current criminal justice system did not truly have common law counterparts in 1871. In such cases the Court has looked to the whether the function performed is one that requires absolute immunity in order to protect the judicial process. Hence the Court has extended absolute immunity to offices that did not exist at common law, such as administrative law judges or officials of regional agencies.

Paulk contends that most prosecutions in 1871 were not brought by public prosecutors but rather by private parties. Thus, complaining witnesses were private citizens, not law enforcement officers such as Paulk. Paulk’s argument focuses on the compelling public policies which led the Court to immunize trial testimony in Briscoe, noting that the same considerations were present with respect to a law enforcement officer’s testimony before a grand jury. In both instances, witnesses can be compelled to testify and failure to grant absolute immunity might cause witnesses to color their testimony as to avoid potential liability, thus harming the judicial process. Paulk further contends that protections are available in the context of grand jury proceedings to deter false testimony, such as prosecution for perjury. Moreover, grand jury witnesses are subject to examination by the district attorney, who has an obligation to pursue the truth, not simply a criminal indictment. In addition, under Georgia law the grand jurors themselves could question a witness, thus subjecting the testimony to the crucible of examination.

Paulk also argues that creating a special rule for “complaining witnesses” providing testimony to grand juries would spawn broad, invasive discovery that would undermine the vital secrecy of grand jury proceedings. This is because it might not be clear in a given case whether a particular witness was a “complaining witness” or merely a percipient witness. There might be several witnesses whose testimony was pertinent to bringing an indictment, and a question would arise as to which, if any, would constitute a “complaining witness.” Moreover, the grand jurors themselves might be examined to determine whether a particular witness’s testimony was a causal factor in rendering the indictment. This is precisely the sort of free ranging inquiry and disruption of proceedings that the Court sought to foreclose in the context of trial proceedings in Briscoe.

In reply, Rehberg’s brief again notes the virtually uniform authority extant in 1871 establishing that complaining witnesses were subject to malicious prosecution liability at common law, including liability stemming from testimony in a grand jury proceeding. Rehberg also disputes the notion that the criminal justice system in 1871 was so different from today’s system as to make the common law irrelevant to the present immunity question. Numerous states had public prosecution offices by the mid-1800s. Complaining witnesses served the same function then that they do now and hence should be subject to the same potential liability for false testimony. Rehberg again underscores the lack of judicial protections in grand jury proceedings – namely, the absence of public scrutiny or meaningful cross-examination, and the prosecution’s role as sole arbiter of what occurs. He dismisses the notion that it will be difficult to identify which witnesses are “complaining witnesses” providing testimony to a grand jury, given that courts have been able to apply the standard in the context of claims arising from warrants, criminal complaints, or informations under Kalina and Malley. Moreover, to the extent qualified immunity would subject defendants to some discovery, Rehberg notes that much of it would be conducted by way of deposition – shielded from public view — and that in any event courts have routinely recognized that grand jury secrecy must give way to the interests of justice when necessary.

The two amicus briefs found common ground on one point. Both the United States (in a brief authored by the Solicitor General) and the International Municipal Lawyers Association, National Association of Counties and National League of Cities (in a brief by Lawrence Rosenthal of Chapman University School of Law in Orange, California) urged the Court to follow Briscoe and hold that all testimony in a grand jury proceeding is subject to absolute immunity. The Solicitor General, however, urges the Court to vacate and remand for further proceedings by the Eleventh Circuit to determine whether the allegations of the complaint might still support a malicious prosecution claim based upon non-testimonial conduct by Paulk. In his merits brief, Paulk contends that the Eleventh Circuit has already concluded that the only conduct Rehberg identified as causing him injury stemmed from Paulk’s grand jury testimony; hence, remand is unnecessary.

The municipal amici take a broader approach, reminding the Court that although the claim was brought under the rubric of malicious prosecution, at bottom it is a claim under the Fourth Amendment, and noting that the Court has yet to recognize such a claim. They further contend that such any Fourth Amendment claim is not analogous to the sort of common law malicious prosecution claim that existed in 1871 and emphasize the special role law enforcement officers play in the investigation and prosecution of crimes. Unlike the complaining witness at common law, police officers are not responsible for filing charges; that responsibility lay with prosecutors, whose actions cut off the chain of causation for any injuries stemming from the officers’ allegedly improper testimony.

Analysis

Like much of the Court’s immunity jurisprudence, this case will likely turn upon whether the Court adheres to its often stated, but loosely applied standard of limiting immunities to those existing at common law in 1871, or whether policy considerations in the context of modern criminal prosecutions will carry the day. If the Court looks solely to any common law basis for granting absolute immunity to complaining witnesses in grand jury proceedings, it will certainly find no such immunity. On the other hand, given the realities of the current criminal justice system, there are plenty of reasons for the Court to find little in the way of common law analogy. The decision may well be driven by policy considerations. If the Court is convinced that potential malicious prosecution claims will unduly hinder the judicial process by exposing witnesses and grand jurors to onerous discovery and routinely erode the secrecy surrounding such proceedings, it could well tilt the balance towards a finding of absolute immunity. If the Court instead focuses on why grand jury proceedings are different than trial proceedings – the absence of adversarial cross-examination, secrecy, flexible rules of evidence, the draconian power of the prosecutor and the potential for abuse (i.e., the ham sandwich problem) – it could reject absolute immunity and conclude that qualified immunity is sufficient to protect the public interest.

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